The Competition Tribunal has ordered the Emfuleni local municipality to provide various documents to steel producer and electricity consumer Cape Gate, which alleges that the municipality excessively charged it for electricity in 2016/17.

In its answering affidavit to the tribunal, the municipality denied the allegations against it.

The tribunal has granted Cape Gate’s discovery application and has ordered the municipality to provide documents which the municipality had objected to producing during the discovery process and which it tendered but failed to produce. 

The tendered documents include, among others, the municipality’s management accounts, board meeting minutes, correspondence to the National Energy Regulator of South Africa and correspondence to Eskom in relation to electricity payments, issues of supply and/or electricity tariffs.

During the discovery process, the municipality tendered to produce these documents but subsequently stated in its supplementary affidavit that, despite a diligent search, it was unable to locate these documents and that they may have been destroyed in a fire that broke out in its offices in May 2018 or been lost during the relocation of its offices.

Cape Gate disputed the defences raised by the municipality for not discovering the tendered documents and requested the tribunal to go behind the municipality’s discovery affidavit and order it to produce these documents.

The tribunal found this to be “. . . a classic case for going behind a discovery affidavit”.
 
In its reasons for decision and order, the tribunal notes that it is trite that a discovery affidavit will generally be regarded as conclusive against the party seeking relief, in respect of both the possession of documents and the relevance of their contents.

It explains, however, that “ . . . a court will go behind a discovery affidavit if it is satisfied that there is a probability that the party making the affidavit had the relevant document in its power or possession. The facts of this case are regrettably such that little reliance can be placed on the affidavits placed before the tribunal on behalf of the Emfuleni local municipality.”
 
The tribunal in its reasons further states and notes: “The belated assertion that documents may have been lost in the fire or mislaid in the relocation is a conclusion which lacks any foundation in the form of evidence of primary facts. 

“A conclusory assertion that the documents could not be found after diligent search does not constitute evidence. The Emfuleni local municipality has produced no direct evidence of what efforts have been made to find the documents, who made those efforts, and when they were made.”
 
“[The municipality] has on five occasions provided contradictory statements on the status of the tendered documents.”

In the circumstances, the tribunal concluded that no reliance can be placed on the generalised assertion that the tendered documents cannot be found. It exercised its discretion in favour of going behind the municipality’s supplementary affidavit and ordered production of the tendered documents.